The Asia-Pacific region has a rich diversity of plants, which
have been used by people for generations. The majority of people in Asia-Pacific
still rely directly on this diversity of plants, or plant genetic resources,
for food and medicine. There is an abundance of local expertise in plant genetic
resources that has been in use over a considerable period of time and is also
constantly evolving. In agriculture, for instance, this knowledge is shown in
the development and adaptation of plants and crops to different ecological conditions
(soils, rainfall, temperature, altitude etcÂ…). Traditional knowledge is peopleÂ’s
awareness and understanding of this and other information, which is passed on
from one generation to the next, usually by word of mouth or example within
a specified group of people. Indigenous knowledge is often used interchangeably
with traditional knowledge [1] . In this paper, traditional knowledge will focus specifically on plants
and their use by people.

The need for a specific definition of traditional knowledge
is impelled by the push from the formal sector [2] to control, manage and market the knowledge and to bring it under
a regulatory framework. Traditional knowledge provides useful leads for scientific
research, being the key to identifying those elements in a plant with a pharmacological
value that is ultimately destined for the international markets. Indeed, such
traditional knowledge is very valuable. Annual global sales of products derived
from the manipulation of genetic resources lie between US$ 500 and US$800 billion
annually.
[3] Sales of herbal medicine alone are estimated
to have exceeded US$ 12.5 billion in 1994 and US$ 30 billion
in 2000, with annual growth rates averaging between 5% and 15%, depending on
the region.
[4]

Ironically the very knowledge that forms much of the basis
of Â“modernÂ” scientific research and development is not regarded as a Â“scienceÂ”.
Industry gets the rights and the profits; local communities are merely used
as providers of Â“raw materialsÂ”. The world Â“scientificÂ” community, in response
to the demands for recognition of indigenous peoples and other local community
organisations, acknowledge that traditional knowledge has Â“contributed to
the development of modern scienceÂ”, but do not agree to Â“traditional knowledgeÂ”
being classed the same as "scientific knowledge".
[5]

Most of the debate about traditional knowledge at the international
level is taking place in the context of intellectual property rights (IPR).
It is through IPR, and particularly patents, that control and ownership over
traditional knowledge is being usurped by commercial interests. [6] And part of the problem is that the IPR system, which threatens traditional
knowledge itself, is now being proposed as a system to protect traditional knowledge.

In the patent system, a patent can only be granted if an invention
is novel or nonobvious. Novelty and nonobviousness are judged against everything
publicly known before the invention, as shown in earlier patents and other published
material. This body of public knowledge is called "prior art".
[7] Prior art means any disclosure of the contents of a claim, prior to
the application for patent. Some national laws do not recognise oral knowledge
as evidence of Â“prior artÂ”. The United States (US) regards oral disclosures
as prior art only if they were made in the US.
[8] Thus, a therapeutic technique orally handed down from one generation
to another by a tribe in Asia or the Pacific can still be patented in the US,
despite it being publicly known for many years. This is why western-styled patent
systems are inherently incapable of recognising the existence of, or providing
protection to, traditional knowledge of other countries.

The whole notion of patents, or indeed
any type of intellectual property protection, for life forms runs contrary to
the traditional ways in which the properties of life forms are bred and nurtured
in many parts of the world.

South Asia Network on Food, Ecology
and Culture, November 2001

Another dimension of the problem is that access and benefit sharing (ABS) arrangements
Â– the first step that many governments take to supposedly rectify imbalances
Â– are being premised on IPRs, despite the unsuitability of the latter to biodiversity
and related traditional knowledge.

Indigenous knowledge isÂ…threatened from three sources: (1) loss of
the indigenous peoples territorial base through the destruction of the
rainforests, and their displacement by government projects or through
commercial utilisation of natural resources.Â This makes it impossible
for many indigenous communities to sustain their knowledge as well. (2)
The introduction of the so-called Â“modernÂ” practices of agriculture and
medicine. (3) Indigenous knowledge is increasingly endangered by misappropriation
of this knowledge by outside researchers.

This paper gives an update on what is happening in the region, both in terms
of the pressure to commoditise and privatise biodiversity, and the ongoing responses
from governments and local people. The message is that industry is making deeper
and deeper inroads, with increasingly active support from governments, while
the mechanisms to protect and strengthen the rights of communities are still
experimental and weak.

Traditional knowledge of plant genetic resources is under
threat. The global push for privatisation of biodiversity continues to encourage
ownership over these genetic resources. Many countries, and the large businesses
they support, increasingly want to control these resources and the knowledge
associated with them for commercial purposes. The means for such control is
the use of intellectual property rights Â– particularly patents. Listed here
are a few of the international legal bodies whose work reflects the pre-occupation
with intellectual property rights.

WTO: Under the World Trade OrganisationÂ’s TRIPs Agreement, countries are
obliged to provide intellectual property protection for plant varieties at the
national level either through patents or Â“an effective sui generis systemÂ”or
both. [10]
In asking for not only a review of Article 27.3(b) [11] but a complete review of the TRIPs Agreement, countries from Asia
have adopted an important position at the WTO. India on behalf of other Asian
countries in its submissions to the TRIPs Council asked that TRIPs be harmonised
with the Convention on Biological Diversity (CBD). [12] At the Fourth WTO Ministerial Conference at Doha, China & the
G77 issued a statement, which said Â“the TRIPs agreement should be supportive
of, and not run counter to, the objectives and principles of the CBDÂ”.
[13] The statement also provided practical advice by saying that Â“during
the course of this reviewÂ…members should agree not to invoke dispute settlement
procedures against developing countriesÂ”.
[14] China, India, Pakistan and Thailand with a few other African and Latin
American countries have together also made a submission to the TRIPS Council
asking that the TRIPS Agreement be amended so as to require an applicant for
a patent relating to biological materials or traditional knowledge to provide
information on the country of origin of the biological resources, evidence of
prior informed consent and that of a fair and equitable benefit-sharing arrangement
as a condition to acquiring patent rights. [15] Nonetheless, this position does not challenge the patentability of
traditional knowledge or biological resources.

UPOV: The UPOV Convention is
an international agreement that sets rules, similar to patents, for monopoly
rights over crop varieties. Several Asian countries already have, or are in
the process of making, UPOV-styled laws for plant protection. Members
of ASSINSEL, the international association of the seed industry, have continued
to pressurise governments to adopt UPOV. [16] In a position paper ASSINSEL wrote that Â“any national legislation
authorising farm saved seedÂ…without safeguarding the legitimate interest of
the breeders is not in conformity with the 1991 Act of the UPOV convention.Â”
ASSINSEL also adds that such national legislation would also Â“not be an effective
sui generis system in the meaning of the article 27.3(b) of the TRIPs
agreementÂ”.
[17]

WIPO: Traditional knowledge
and IPRs are being brought together at the World Intellectual Property Organisation
(WIPO) under the Intergovernmental Committee on Genetic Resources, Traditional
Knowledge and Folklore. [18] Another WIPO-sponsored activity is the creation of a Task Force under
the Committee of Experts of the International Patent Classification (IPC) Union,
to study the relation and possible integration into the IPC of a Traditional
Knowledge Resource Classification. In Asia, a joint
statement adopted by the WIPO Asian Regional Forum on Intellectual Property
Policy Development emphasised the urgent need for Â“developing countries to modernise their
intellectual property systems and to bring their national legislative and administrative
structures into conformity with international treaties and agreements, including
the TRIPS AgreementÂ”.
[19]

CBD: It is under the Convention
of Biological Diversity (CBD) and its Article 8(j) that the need to protect
traditional knowledge has gained an international foothold.
[20] With indigenous groups and peoplesÂ’ organisations stressing the need
for more focussed attention on traditional knowledge, at the Madrid Workshop
organised under the auspices of CBD, the requirement for a working group on
Article 8(j) was endorsed.
[21] ,
[22] The Working Group is Â“studying
existing systems for handling and managing innovations at the local level and
their relation to existing national and international systems of intellectual
property rights, with a view to ensure their complementarityÂ”.
Article 8(j) of the Convention recognises the need to
respect the skills, practices etc. of indigenous and local communities, to take
their consent for the wider use of these skills, practices etc., and to ensure
equitable benefit-sharing if such use takes place. As stated in the Preambular
paragraph of the Convention text, the member countries recognise the desirability
of sharing equitably the benefits arising from the use of traditional knowledge. [23] Under the CBD, a working group on Access to Genetic Resources and
Benefit Sharing has developed the Bonn Guidelines on Access and Benefit Sharing [24] that were adopted at COP6
[25] . The Guidelines are designed to facilitate access to genetic resources
amongst member states. Though the Guidelines seek to balance the interests of
the country of origin of genetic resources with those of the recipient in benefit-sharing
arrangements, they are premised on the commercialisation of these resources.
The relationship between IPR and benefit-sharing is also being examined in the
process. At COP6, NGOs with representatives from the region made a demand for
special provision for indigenous & farmersÂ’ rights in the form of a protocol
under the Convention.

FAO [26] : Under the auspices of the Food and Agriculture Organisation, the
International Treaty on Plant Genetic Resources provides a space for national
recognition of farmersÂ’ rights. Several Asian country negotiators, including
India, fought hard at the table for the inclusion of farmersÂ’ rights in the
text. However, the Treaty fails to make international provisions for farmersÂ’
rights, putting the onus instead on national governments to do so. The Treaty
also has controversial provisions on intellectual property rights. [27] ,
[28]

APEC:Within the Asia-Pacific
Economic Cooperation [29] , there is an Intellectual Property Rights Experts Group (IPEG).
[30] The IPEG is developing Collective Action Plans (CAPs) in the area
of IPRs for promoting the establishment of an internationally harmonised intellectual
property system. The IPEGÂ’s CAP-based activities include
work on issues associated with genetic resources, traditional knowledge, and
folklore. [31]

As the above shows there is virtually no endeavour at the
international level to explore alternatives to the IPR system as a means of
protecting traditional knowledge. The rush for Â“green goldÂ” from the private
sector continues to accelerate the trend towards IPRs. [32] For the private sector, exploiting biodiversity requires IPR. And any
protection of traditional knowledge must fit into the IPR system. The International
Chamber of Commerce believes it is Â“essential that any new system for protecting
traditional knowledge be compatible with existing intellectual property rights,
in particular patentsÂ”.
[33] The European Chemical Industry Council is of the opinion that
Â“protection [of traditional knowledge] through existing IP systems is possible
and preferableÂ”.
[34]

The use of bilateral agreements, or political pressure, between
individual countries is one of the most effective means being used to coerce
Asia-Pacific governments to adopt intellectual property rights for traditional
knowledge, as shown by these examples:

Â·
In January 1992, the United States and China
signed the Memorandum of Understanding on the Protection of Intellectual Property.
This agreement required China to make certain changes to its laws governing
intellectual property protection and to accede to several international IPR
Conventions before 1994.

Â·
In April 1997, the US State Department sent a letter to the Thai
government regarding draft legislation that allowed Thai healers to register
traditional medicines, thus keeping them within the public domain. The letter
advised the Thai government, Â“Washington believes that such a registration
system could constitute a possible violation of TRIPs and hamper medical research
into these compoundsÂ”. The US letter provoked public outrage; the letter
implied that the US government wished to protect the right of foreign researchers
to patent Thai knowledge. [35]

Â·
In 2000, Vietnam has been pressurised to hasten the protection
of intellectual property rights under a bilateral trade agreement with the US.
[36] The Agreement requires that Vietnam must implement and Â“make
best effortÂ” to join UPOV and that it must provide patent protection on all
forms of plants and animals.

Biopiracy can be defined as the stealing of knowledge from
traditional and indigenous communities or individuals. The term can also be
used to suggest a breach of a contractual agreement on the access and use of
traditional knowledge to the detriment of the provider and bioprospecting
[37] without the consent of the local communities.

The number of cases of biopiracy affecting Asia is growing
steadily, as shown by the examples in Table I and Box: Control
over resources in Asia.

The multinational company Eli
Lily has earned billions of dollars from the drug, erythromycin, sold
under the brand name "Ilosone", developed from an antibiotic
isolated from a soil sample that a Filipino scientist Abelardo Aguilar
collected in his home province of Iloilo. Neither Aguilar nor the Philippines
received any royalties.

The use of the extracts from
ilang ilang in the cosmetic industry is perhaps as old as perfume in France.
There are several perfumeries in France that have used and continue to
use it in their products.

A US plant geneticist has developed
a strain of Jasmine Rice to be able to grow it in the US; he received
the original seeds of the Thai Khao Dok Mali
105 (KDM 105) jasmine rice variety from the International Rice Research
Institute (IRRI) in 1995.

Â· German agrochemical
and pharmaceutical giant, Hoechst Co. has several US patents on preparations
from the medical plant of the mint family Coleus forskohlii, which
grows in India, Nepal and Thailand
[51]

Â· Multinational pharmaceutical
companies often practice transfer pricing in the trade of raw materials
used in the drugs, and this raises the cost of medicines in developing
countries. A study by Dr. Zafar Mirza (The Network Association for Rational
Use of Medication in Pakistan) compared prices of pharmaceutical raw materials
imported into Pakistan for local manufacture by drug companies. [52]

Â· Glaxo Wellcome has
been involved in ethnobotanical research in South East Asia since 1998.
The Singapore Center for Natural Products Research (CNPR), a Glaxo Wellcome-funded
bioprospecting institution is alleged to have an agreement with IndiaÂ’s
Tropical Botanical and Garden Research Institute (TBGRI), which allows
it to makes the Â“work carried out by CNPR and Wellcome with the samples
and any information relating theretoÂ…the confidential property of CPNR
or Glaxo WellcomeÂ” and offer any commercial product developed from
the Kerala plants to a Â“third partyÂ”. [53] Subsequently, the State Government decided
to give a greater role to local administrative bodies and so as to facilitate
people in Â“policingÂ” their flora and fauna. The executive order to that
effect is yet to be issued. [54]

Biopiracy takes everything and returns nothing or very little.
The only Â“valueÂ” added to native knowledge is a mere confirmation by Western
scientists of the properties of the resource, often known to the community for
years. Unlike the social system in which this knowledge evolves, in the commercial
system from the origin to the end product, each Â“value-adderÂ” seeks a profit-oriented
monopoly. And more often than not it is the pharmaceutical or agri-chemical
companies marketing the finished product that secure patents, irrespective of
the fact that the product may have had its origin in traditional knowledge.
So the Â“first-to-fileÂ” gets legally protected rights rather than the Â“first-to-invent";
rights which ironically the former can use to prevent the original Â“inventorÂ”
from exercising any control over the resource in question. So the issue of protection
of traditional knowledge is also that of preventing unauthorised persons from
obtaining protection to the detriment of the real innovators.

Gugulipid is an advanced herbal extract of Commiphora mukul, an
indigenous tree of India. Nature's Plus Herbal Actives Gugulipid gum extract
is uniformly standardized to a minimum of 2.5% (18.75 mg.) guggulsterones.
Each capsule, providing the greatest concentration of active botanical
principles, maximizes the synergistic benefits of this Ayurvedic gum,
a key component of Ayurveda, the ancient Indian system of health and well-being

In addition, as governments realise the commercial value of genetic resources,
they too wish to have more control over them. Where resources are under the
control of the government, access to these resources can be restricted. The
long history of state control over resources in forest areas and other areas
prevents unhindered access to biological resources by the local communities.
The Kani Tribe in India till now has trouble accessing a plant (Trichopus
zeylanicus), used in the preparation of the herbal medicine “Jeevani”,
which is grown under the shade of the natural forest canopy. Although the government
does not contribute in the collection of this herb, some State Forest Department
guards on the field have been reported instead to demand (from those attempting
to collect the plant) a "share" of the supposed license fee and royalties
they are aware that the tribals are entitled to get. Legally the tribal people
cannot access the plant and sell it to the institute that developed the drug,
since collection for commercial purposes is not allowed. The Forest Department
justifies the restrictions on collection on grounds of conservation of an endemic
species, which may run the risk of over-exploitation from the commercial demand.
[56]

Concerns have also been raised that the biological resources
on which traditional knowledge flourishes on now also face the threat of depletion.
Plants are vanishing so quickly that the Earth is losing one major drug to extinction
every two years [57] . Disrupting the interrelation between the traditional knowledge-generators
and their resource, may well lead to the disintegration of the very processes
by which the knowledge evolved and is kept alive.

Governments and companies alike are key players in the business
of biotrade. Â“BiotradeÂ” refers to the movement of biological resources between
countries, companies, academic institutions and individuals for actual or potential
profit. More and more governments in the region, willingly or unwillingly, are
allowing overseas and domestic private enterprise to operate in the sector.
Cash-stricken governments often strike biotrade deals that might not further
the interests of their traditional knowledge-holders. These governments often
have little economic power when negotiating with large multinational companies.
Often one company may strengthen its position in a region by signing contracts
with several countries in that region.

For example, Oxford Natural Products (ONP), from the United
Kingdom, has signed an agreement with PT Indofarma, one of the largest pharmaceutical
companies in Indonesia, which will bring Â‘JamuÂ’ medicines onto the international
market. Â‘JamuÂ’ are the traditional local botanical medicines widely prescribed
for those who live in Indonesia, the largest country in South East Asia.
[58] This thriving business of traditional medicine is one of the few that
does well even in Indonesia's recession-ridden economy. [59] ONP has also signed an agreement with one of the leading natural medicine
development institutes in Vietnam. The two-part agreement embraces both development
and future commercial rights giving the company exclusive access to an important
portfolio of VietnamÂ’s plant medicines. [60] ONP is also involved in Bhutan in which the company used the knowledge
of the Dungtshos (Bhutanese traditional medicine doctors) and their assistants,
the Menpas, to identify and document several medicinal plants prescribed in
local remedies.
[61] GRAIN asked ONP about the benefit sharing policy of the company, but
we did not receive a response.

With countries in the region facing and succumbing to such
threats of biopiracy and biotrade, a collective stand may provide an effective
resistance to biopiracy. However, there is an equal threat of increasing conflicts
between countries in Asia. Conflicts may occur between countries that share
the same or similar resources or see competition for foreign markets.

For example, with respect to the uproar over RiceTecÂ’s Basmati
rice patent, Nepal is concerned about not being acknowledged as a Basmati rice
producer.
[62] Any settlement of legal rights or compensation related to the name,
the knowledge or the plant in favour of one country Â– such as India or Pakistan
-- could leave Nepal out altogether.

In another controversial development, Malaysia has sought
a patent on Eurycoma longifolia, popularly known in
the country as Â“Tongkat AliÂ”. The Forest Research Institute of Malaysia (FRIM)
has been given a mandate by the Malaysian government to be the lead agency in
developing the plant. There is also an ongoing research programme between FRIM
and the US Massachusetts Institute of Technology on Tongkat Ali. Under this
research a patent has also been applied for. FRIM has also signed a Memorandum
of Understanding with Japanese-owned Nimura Genetic Solutions to collaborate
in bio-prospecting of new drugs.
[63] In Indonesia the same plant, locally known as Â“Pasak BumiÂ”, is a part
of Jamu traditional practice, raising cross-border concerns about how Malaysia
proceeds.

Also relevant in South-South relations are how one countryÂ’s
laws can impact another in the region. For example, the price of drugs in Sri
Lanka is much higher than those in India, because of IndiaÂ’s patent policy
[64] . Indian patent law had until recently consistently refused to recognise
product patents and permitted the manufacture and sale of patented products
produced by a distinctly different process. Many such drugs are available in
India and most of them are offered much lower than world market prices.

The tightening of regulation in one country can also have
an adverse impact on plant genetic resources in another. For example, the smuggling
of Taxus baccata from Nepal has increased since Indian law on its collection
has become stricter.

The lack of a coordinated regional front against Â“biopiratesÂ”
from the West may be either because of political differences that may not allow
for constructive dialogue, or simply because of a sense of competition against
one another whilst vying for profitable bilateral bio-deals in the global marketplace.

The physical removal of plant genetic resources is another
phenomenon that has surfaced in areas of eco-tourism and nature trails. There
have been several instances in Cambodia where unscrupulous individuals and corporate
collectors have plundered biological resources. [65] Along with the ecotourism boom, the illicit collection,
smuggling and trade in marketable biological resources has become a multi-billion
dollar business. Island nations such as the Maldives and the Pacific Island
States, where tourism is one of the largest economic activities, can be particularly
vulnerable to such theft. Protected areas can ironically be more vulnerable
than other areas, as growing tourism makes supervision impossible. The Philippine
yew tree (Taxus matrana), reported to have great potential in treating
cancer, was uprooted from a national park in Mount Pulag, Benguet. Subsequently
researchers from the University of Massachusetts patented it.
[66]

The stealing of plants and knowledge also sadly happens with
the collusion of local people. For example, in the Andaman
Islands off India's eastern coast, the Onge tribe supposedly had a cure for
malaria.
[67] There was huge controversy when it was discovered that senior officials
from a government-run research centre had planned to file a patent application
in their own name for the malaria cure. [68] Meanwhile NGOs working in the islands have sought plant quarantine
and a ban on the introduction of exotic species that might endanger endemic
plant life. In the absence of specific legislation for the protection of the
biological resources and the knowledge emanating from it, such measures for
safeguard are being sought under the Coastal Zone regulations, which designate
greater protection to the Islands than other coastal areas.

Creating, modifying and implementing national laws on traditional
knowledge and genetic resources is the most visible action taken by governments.
This Â“law-makingÂ” is spurred on by pressure to meet international agreements.
The general trend in Asia is towards the commercialisation of genetic resources
and the expansion of IPRs over traditional knowledge. This trend is most visible
in the adoption of UPOV-style legislation that do little to recognise and reward
farmersÂ’ innovation in plant breeding. Attempts have been made to slow down
this trend until impact assessments of the changes are fully explored, but with
little evidence of success. Nevertheless, many developing countries are also
attempting to promote legal changes to protect biodiversity and related traditional
knowledge.

Regulation of the PeopleÂ’s Republic of China on the
Protection of New Varieties of Plants, 1999

Patent Law

Fiji

Draft Sustainable Development Bill

Hong Kong

Plant Varieties Protection Regulation, 1997

India

Patent (Second Amendment) Act, 2002

The Protection of Plant Varieties and Farmers' Rights
Act, 2001

Draft Biological Diversity Bill, 2000

Draft Kerala Tribal Intellectual Property Rights Bill, 1996

Draft Karnataka Community Intellectual Rights Bill, 1994

Indonesia

Health Act

Plant Variety Protection Bill

Act on Spatial Use Management, 1992

Plant Cultivation Act, 1992

Korea

Wild Flora and Fauna Protection Act

Under revision Natural
Environment Conservation Act

Seed Industry Law, 1999

Malaysia

Draft Plant Variety Legislation, 1999

Biodiversity Policy

Draft Access and Benefit Sharing Law

Myanmar

Protection of Wild Life and Wild Plants and
Conservation of Natural Areas Act, 1994

Nepal

Draft Policy on Access to Genetic Resources and Benefit Sharing, 2002

Draft Access to Genetic Resources and Benefit Sharing Act, 2002

Local Self Governance Act, 1998

Plant Protection Act, 1973

Pakistan

Draft Plant Breeders Rights Law, 2000

Philippines

Wildlife Resources Conservation and Protection Act,
2001

Plant Variety Protection Act, 2000

Indigenous Peoples Rights Act, 1997

Traditional and Alternative Medicine Act, 1997

Executive Order No. 247 on bioprospecting, 1995

Draft Community Intellectual Rights Protection Act,
1994

Samoa

Intellectual Property Rights Law, 1998

Village Fono Act, 1990

Draft Environment Bill

Proposed Access to Genetic
Resources Regulations

Singapore

Proposed Policy Guidelines
on access to genetic resources

Sri Lanka

Draft Protection of New Plant Varieties Act, 2001

Draft Access to Traditional Knowledge relating to the Use of Medicinal
Plants Act, 2000

Agreement on the protection and enforcement of Intellectual
property rights between the US and Sri Lanka, 1991

Taiwan

Plant Seed Law, 1988

Thailand

Thai Traditional Medicine Act, 1999

Plant Variety Protection Act, 1999

Draft Community Forest Act, 1996

Vanuatu

Under revision Environment
Act

Vietnam

Agreement between the US and Vietnam on Trade Relations,
2000

Law on Environmental Protection, 1993

Land Law, 1993

In some countries, governments have made sincere efforts to
empower local communities, such as in the Philippines with the Indigenous Peoples
Rights Act.
[69] Other examples include, the Thai Traditional Medicine Law of 1999
that seeks to protect traditional knowledge related to medicinal plants, the
Bangladesh draft Biodiversity and Community Knowledge Act of 1998 and in Samoa,
a law that protects the traditional form of governance of local resources through
the Village Fono-Council, allowing for the continuance of a sui generis
system. In India, an amendment to the Indian Constitution allows for village
bodies (panchayats) to take decisions on local biological resources.
[70]

But new laws can also bring in more administrative structures
and accompanying bureaucracy. KAMP, an alliance of indigenous peoplesÂ’ organisations
in the Philippines, explains how the Local Government Units do not recognise
and respect the traditional systems of self-governance.
[71] Multiple bodies and groups at the local level, with often overlapping
jurisdictions, may increase the problem of local resource management and create
unnecessary conflicts with informal systems of control and management.

Electronic databases and digital libraries are gaining popularity
in several government-initiated projects for documenting traditional knowledge.
There is strongly divided opinion on the efficacy of such databases to prevent
against biopiracy. Some say that centralisation makes information inaccessible
to rural communities and alienates them [72] . Others defend documentation in the light of dying
oral knowledge and the erosion of the social processes that transmit the knowledge
of a community or tribe to its next generation. There is consensus, however,
that any collection of traditional knowledge data must have the prior informed
consent of the communities. In situations where such knowledge is not already
in the public domain, governments would need to ensure that the disclosure of
traditional knowledge is voluntary. Also, much traditional knowledge that is
currently in the public domain may not be there with the consent of the concerned
communities. Readily putting such knowledge into databases supposedly to prevent
patents would only be building on an earlier wrong. Likewise, there are other
practical issues that need to be resolved such as the basis of user fees, valuation
of the information collected, possible claims of intellectual property over
the databases themselves and the recovery of operational costs of these databases.

Despite clarity on the way forward, several developed countries
that have the technological edge encourage the digitalisation of traditional
knowledge. They then offer equally hi-tech solutions. The American Association
for the Advancement of Science has since 2001 launched a project Â– TEKPAD
[73] Traditional Ecological Knowledge Prior Art Database Â– for the preparation
of electronic public databases to establish "prior art". It has a
prescribed Prior Art Registration Form [74] , which it says allows individuals or community groups the opportunity
for "defensive disclosure" -- a way of publicly displaying their indigenous
knowledge. Once the knowledge is published on the Internet, it becomes proof
of prior art.

In India, a Traditional Knowledge Digital Library (TKDL)
has been set up to record details of medicinal plants, currently 4,500, in an
easily searchable database. This allows Â“inventorsÂ” to make searches of the
database to check if they can patent their product. WIPO
has adopted this digital library as a model for future work on traditional knowledge
databases.
[75]

Asian Pacific Information Network on Medicinal and Aromatic
Plants (APINMAP)
[76] launched by UNESCO is a network of organisations from over a dozen
Asia-Pacific countries also working to create databases. TradiMed [77] , one such database, focuses on traditional oriental medicine and is
developed at the Natural Products Research Institute, in Korea, a government
supported project since 1992. Its aim is to integrate the ancient knowledge
of oriental tradition with modern science and technology.
[78]

In China, a herbal medicine gene database project was launched
in April 2002 that is expected to combine traditional Chinese medical science
with gene pharmaceutical technology. [79] China is modernising its traditional medicine
industry in the hope of cornering the fast growing world market for natural
medicines.

Malaysia established a National Biodiversity Policy in 1997.
As part of this new policy, the government had built the "Sarawak Biodiversity
Centre," whose purpose was to help develop national policy and guidelines,
and to document indigenous medicinal practices. Thereafter a new Sarawak law
was passed stating that user fees will be imposed on any resources with "pharmaceutical,
medicinal, biotechnological, scientific, commercial or economic value, properties
or potential. Violations will result in a fine of approximately US$5000, and/or
up to three years in prison.Â” People were expected to come to the Centre
and share their traditional knowledge, while receiving nothing in return. The
government or private companies would procure intellectual property rights on
the knowledge for their own gain. This type of example
only increases concerns about whether databases would actually safeguard against
biopiracy, or instead further exploit traditional knowledge.

The number of research centres and research projects has increased
in the region, from domestic ventures to foreign collaborations and corporate
sponsorship. Research in traditional knowledge also raises questions about the
relationship between academic institutions and industry.

In some cases research is apparently carried out for the benefit
of local and traditional communities. For example, in India, the All India Coordinated
Research Project on Ethnobotany has identified tribal and other community uses
for several thousand species of plants, including medicinal plants. It is to
be seen whether the communities actually do benefit from it. In Laos, a unique system of governmental promotion and protection of the population's
traditional medicinal practices has evolved under the auspices of the Ministry
of Health. A Traditional Medicine Research Centre has been set up, which is a potential
tool for protecting traditional medicinal knowledge of the tribes in the country.

However, research in other places does not benefit those with
the knowledge. In Malaysia a plant in the Sarawak rainforest is now undergoing
tests to determine if it presents a cure for prostate cancer. The Malaysian
government has not released the plant's name for security reasons, but they
are working with an Australian company to bring it to the market.
[80] ,
[81] Also in China, in what was billed as a milestone for traditional Chinese
medicine, two foreign firms recently joined with one of mainland China's oldest
houses of medicine to research and develop Chinese pharmaceuticals for overseas
markets. Pharmagenesis from the US and Orchid from France signed
a contract with Lerentang from Tienjin to invest US$9 million for joint
research of the active ingredients in traditional Chinese medicines. [82]

Research projects funded by international organisations like
the World Bank are also seen to encourage biopiracy, as they seek to further
corporate interests. "Our objection is against the collection of traditional
knowledge without proper benefits to locals," argues Hemantha Withanage
talking about a 'Conservation and Sustainable Use of Medicinal Plants' project
jointly funded by the World Bank and Global Environmental Facility, and who
works for the Environmental Foundation Ltd., a well-known local environmental
agency in Sri Lanka.
[83] Another case from Sri Lanka is that of the US CornellÂ’s University
contract with the University of Sri Jayawardenapura for the export 905 plant
varieties until the year 2005.
[84]

In one research project, a custody battle arose between Thailand
and a UK university over local fungi strains with potential medicinal uses.
At issue was a collection of more than 200 strains of marine fungi, taken years
ago from mangrove and coastal areas in southern Thailand, that were stored in
laboratories in the UK's Portsmouth University. But when Bangkok wanted them
back, there was apparent reluctance. A Portsmouth University professor took
the marine fungi specimens in 1993, as part of a research project sponsored
by a pharmaceutical company. [85] They were finally returned much later.

Nepal has its share of problems of bioprospecting alongside
research projects. A University professor from Illinois, US, collected the Dhobini
plant (Mussadena sp.) from the Gurung community of Chhamdila, Nepal without
any arrangement for benefit sharing in case of commercialisation.
[86]

In response, some governments are tightening procedures and
guidelines for research projects. For example, in India, biomedical research
guidelines require that Â“a Folklore medicine / Ethnomedicine is ready for
commercialisation after it has been scientifically found to be effective, then
the legitimate rights/share of the Tribe or Community from whom the knowledge
was gathered should be taken care of appropriately while applying for the Intellectual
Property Rights and Patents for the productÂ”.
[87] Likewise the Indian Ministry of Environment and Forests with the mandate
to oversee biodiversity, issued a circular in 1998 to all universities and research
institutes which stopped the transfer of genetic material outside the country
without prior informed consent and a proper material transfer agreement.

In many countries of the region, during the colonial period, allopathic
[88] medicines were introduced, which led to a gradual
neglect of traditional medicines and knowledge. [89] Today, Asian governments
are trying to provide formal recognition to traditional healers. For example,
the Philippines Institute of Traditional and Alternative Health, a statutory
body established under the Traditional and Alternative Medicine Act of 1997,
was set up in Manila in January 2000. In the same year, in Samoa, an association
of traditional medical practitioners was set up with Government support, and
in Singapore the Traditional Chinese Practitioners Act became law. There are
also National Institutes of Traditional Medicine in Vietnam and in Thailand.

However, these government initiatives should not be seen as
the inclusion of indigenous and local communities in the decision-making processes
on benefit sharing and other similar issues. Indeed, rather than guaranteeing
rights to communities, these government initiatives are often just token gestures
in an attempt to accommodate traditional knowledge in an already biased IPR
system.

In Asia, China has been the most inclined towards the commercialisation
of its traditional medicine and optimally exploiting the market opportunity.
The Chinese government has maintained that it will provide equal importance
to traditional Chinese medicine and Western medicine. China has also not been
a vocal protestor against biopiracy. The history of state ownership of biological
resources and current reforms affirming individual property rights, leave little
space for community autonomy.

Governments have also had to initiate legal action to invalidate
false claims of invention and revoke patents based on Â“prior artÂ”. The country
with the most experience in this matter is India, where the government and the
people have sought to cancel the European and American patents on the countryÂ’s
resources such as Neem [90] , Turmeric
[91] and Basmati Rice
[92] . The Thai government too has contemplated taking legal action against
the US for the alleged piracy of its Jasmine Rice. [93]

Some countries in the region are now beginning to acknowledge
the importance of womenÂ’s roles in biodiversity management. Women, with their
central role in the household in village societies, have been responsible for
the food and nutritional needs of their families. The proverbial Â“grandmotherÂ’s
curesÂ” often hold the key to many curative plant uses. Even in the practice
of medicine men in India there are women who collect the plants and assist in
the preparation of the medicine. Also, even today Traditional Birth Attendants
perform midwifery and other basic healthcare functions in a majority of rural
societies where there is no access to Â“modernÂ” medical facilities. In traditional
agriculture as well, women in Asia are involved in almost all the activities
from seed selection and planting to harvesting, weeding, winnowing, pounding
grain and storing it.

States are therefore compelled to revisit their strategies
to conserve traditional knowledge by facilitating a greater participation of
women. This is partly also due to the efforts made at the international level
to create an awareness of the gender dimension of issues. For instance, in the
United Nations Fourth World Conference on Women (WCW) in Beijing, China in September
1995 the intellectual contribution of indigenous women was explicitly recognised
[94] . At the same WCW, a World Rural Women's Day was launched by several
international NGOs and a worldwide empowerment and educational campaign is annually
organised since1997 by the Women's World Summit Foundation (WWSF) [95] . The year 2001 theme was "protect your traditional knowledge".

TheConvention on Biological Diversity Â“recognises
the vital role of women in the conservation and sustainable use of biological
diversity and affirming the need for the full participation of women at all
levels of policy-making and implementation for biological diversity conservationÂ”
[96]

There are several instances of government-nongovernment organisational
partnerships in this area. For example, in Fiji, an association of female traditional
healers Â– Wainimate Â­Â– works in collaboration with the Government to
record knowledge of traditional medicine. In India, the National Biodiversity
Strategy and Action Plan (NBSAP) process, which is being coordinated through
a government Â– NGO - private sector partnership, has made gender issues a central
concern [97] .

However, there are certain women groups that are critical
of the Â“cosmeticÂ” shift in focus by governments. They warn that women in some
tribal and villages areas are merely being burdened with more labour-intensive
roles in government-sponsored cultural art and craft revival programmes. There
is also little representation of women in local bodies and community councils
that actually take decisions over local resources.

Particularly in the Asian region, with its history of patriarchal
societies, there are several laws and policies, such as land laws and inheritance
rules, which would need to be revised for real gender equity. With limited rights
to resources and equally limited say in the political processes that set the
boundaries of these rights, merely attempting to protect the intellectual heritage
of women would be rendered meaningless.

We have ample experience to demonstrate
that discriminated classes such as womenÂ…suffer routine expropriation of their
knowledge into the Â“largerÂ” community where powerful individual men or groups
of men profit immensely from resources and information that becomes de-genderised
or made accessible to the other economically and socially more powerful groups.

- Dr.D.Roy
Laifungbum of the Centre for Organisation Research & Education [98]

Asia-Pacific governments are also forming strategic alliances,
as shown in Table IV.

The South Asia Association for Regional Cooperation (SAARC)
considers it necessary Â“to clarify the relationship between traditional knowledge
and the existing protection of intellectual property rights, because traditional
knowledge has special characteristics which made its protection by existing
intellectual property rights difficultÂ”. [99] SAARC does believe that Â“there is a
need to prevent piracy of traditional knowledge built around biodiversity and
there should be harmonisation of the TRIPs Agreements with the UN CBD so as
to ensure appropriate returns to traditional communitiesÂ”.
[100] However, little collective action has
actually resulted amongst the SAARC member countries.

The Association of South East Asian Nations (ASEAN) has a
draft Â“Framework Agreement on Access to Biological and Genetic ResourcesÂ”.
[101] Prof. Raymundo Rovillos of the Tebtebba Foundation observes that the
Framework Agreement Â“pre-supposes that we will allow bioprospectingÂ”.

The Pacific group is developing a framework comprising guidelines
and a model law
[102] with the aim of protecting communities and their knowledge on genetic
resources from biopiracy. The guidelines [103] for the purpose are based on the principles
of:

Â·
right of custodianship

Â·
free exchange amongst communities

Â·
commercialisation subject to written consent
and payment of fees and

Â·
registration of communities and their traditional
knowledge

Mr.Clark Peteru, a lawyer from Samoa, is optimistic that regionalism can work
to protect the islands from further biopiracy.

Local communities and indigenous people Â– the traditional
knowledge holders Â– often find themselves disagreeing with their governments
because of a fundamental difference in their perception of traditional knowledge
and the need for its protection. By and large local communities and indigenous
peoples from Asia-Pacific are averse to the commercialisation of traditional
knowledge. Thus they often find their governments more part of the problem than
allies in the search for solutions. There is however an increasing number of
non-governmental organisations and civil society groups that are working with
the knowledge holders in the region. Together they have challenged the current
patent system by a range of actions ranging from creative campaigns against
multinational companies, non-cooperation with insensitive governmental policies,
programmes and agencies, and intervention in the lawmaking process both at the
national and the international level.

Documentation is the conversion of traditional knowledge information
provided by communities into written documents, drawings or audio recordings.
The main aim of such documentation is to ensure that information is not lost
and to protect communities by showing that such information is prior art.

In India, where the debate on documentation is most animated,
the written form has seen various versions and models ranging from the Community
Biodiversity Registers initiated by Foundation for Revitalisation of Local Health
Traditions and Centre for Ecological Sciences at the Indian Institute of Science,
to the PeopleÂ’s Biodiversity Registers of NGOs. What they have sought to document
include resources, traditional practices, populations of flora and fauna, management
options and occupational segments of the community. The India-based Honey Bee
Network operated by the Society for Research and Initiatives for Sustainable
Technologies and Institutions (SRISTI) has documented
over 9,000 "green" innovations based on indigenous biodiversity knowledge,
creativity, and innovation [105] . As a follow-up to documentation, SRISTI has set
up the Grassroots Innovation Augmentation Network in Gujarat in collaboration
with the State Government to develop innovations into products and then into
enterprises. SRISTIÂ’s work has further culminated in the launch of the National
Innovation Foundation, a grassroot eco-innovation multimedia database.Â Â

Though there is agreement amongst NGOs and CSOs that documentation
should be done in a participatory manner and that the documented form should
be kept at the local level within community control, there are divergent views
on whether the documented material should be publicised or maintained in a state
of secrecy. On the PeopleÂ’s Biodiversity Registers in several villages
in India, Utkarsh Ghate of the NGO RANWA [106] states that their preparation is undertaken not merely from an
IPR point of view, but as a social process in itself and as a record for knowledge
and knowledge holders.

In Sri Lanka too efforts on documentation are ongoing under
the auspices of the network of Ecological and Sustainable Farming Systems. In
2000/2001 the network established a National FarmersÂ’ Federation for the conservation
of traditional seeds and agricultural resources. The farmers in this network
have documented crop varieties, traditional agricultural rituals and traditional
food preparations. [107] In Malaysia, the Bidayuh community plans to be the first ethnic group
in Sarawak to document and protect their ethnobiology-related knowledge and
practices under a pilot project being undertaken by the Sarawak Biodiversity
Centre.
[108]

Documentation is regarded as the best insurance in times of emergency. In situations
of famine or drought in the future, knowledge of traditionally resistant crops
kept alive through documentation, could be life saving. Documentation is also
felt necessary in resource management and community seed banking as it provides
materials for sharing of experiences and promotion of conservation efforts.
[109] Cynical about governmental support in such situations, the people
know that they have to have their own safeguards in place.

The need for monitoring of bio-resources is increasingly being
felt by communities, to the extent that they are evolving their own vigilance
systems to safeguard against biopiracy. For example in Pakistan, the Shimshals
are one of the countryÂ’s few mountain communities that retain a strong commitment
to environmental beliefs, knowledge and practices that have been lost elsewhere.
The Shimshal Nature Stewardship Program is an effort to formalise all those
environmental beliefs, knowledge and practices of the Shimshal culture and tradition
into a language and structure that is accessible to the international ecological
community. [110] The community has taken it upon itself to supervise its area.

In the Philippines, the same type of assertiveness exists
amongst the indigenous Talaandig community of the Bukidon province. The community
charged a team of bioprospectors with illegally acquiring samples and trespassing
on their land without prior consent. Because of this incident, an office known
as the Council of Elders Prior Informed Consent Office was established in Malaybalay
City in March 2000. The community continues to guard its territory and heritage.
[111]

In response to local initiatives, the government of Nepal
will declare Milke Jaljale, a rhododendron conservation area, the first floral
conservation area in the country. Local communities in the eastern hill districts
of Terhathum, Sankhuwasabha and Taplejung will all participate to preserve the
rich biodiversity of the area without the help of the state authorities. This
is the first time in Nepal that a local community has initiated the conservation
of a large area, which is particularly rich in plants.
[112]

But policing on its own is inadequate until communities realise
the full value of the knowledge they hold. In Malaysia, the Indigenous Peoples
Network of Malaysia (Jaringan Orang Asal SeMalaysia) is working on a project
to show indigenous peoples the value of their contributions.
[113]

In instances where the people have realised what they have
lost, they have come forward to assert their right to it. Increasingly local
groups have organised in protest to regain their title of original innovators
in instances of false claims of Â“inventionÂ” by foreign patentees.

The Shiseido Corporation of Japan, a multinational cosmetic and skincare
company, had patented eleven traditional Jamu healing herbs. Under pressure
from public protests Shiseido cancelled the patents it had of the Indonesian
spices. In the last two and half years the Japanese cosmetics company
has been bombarded with campaign messages from Pesticide Action Network
(PAN) Indonesia and other concerned civil society organisations. [114]

The UK-based Foundation for Ethnobiology proposed to exhaustively document
the ethnobiological knowledge of the Saka Karen tribal people of Thailand.
Riche Monde, Ltd., the project's financier, was a Thai subsidiary of Moet
Hennessey Louis Vuitton, a Paris-based luxury goods manufacturer with
strong financial interests in cosmetics. [115] In 1995, a group of Thai NGOs led by the
Project for Ecological Recovery and NorthNet made a public appeal for
the project to be stopped. The weight of the NGOs arguments, and subsequent
media coverage, was so strong that the project, which was to be executed
through the Chiang Mai University was quickly halted when Riche Monde
withdrew, citing the glare of unfriendly publicity.
[116]

NGO and peopleÂ’s pressure prevented the wrongful patenting of the Onge
tribal knowledge by ICMR scientists in India.

A global peopleÂ’s campaign since 1995 against the patenting of Neem giving
evidence of Â“prior artÂ” led to the European Patent Office rejecting at
a public oral proceeding in May 2000 a US companyÂ’s claim to having Â“inventedÂ”
a Neem fungicide.

In New Zealand, a claim has been filed by six Maori tribes for the recognition
and protection of their cultural and intellectual heritage rights; for indigenous
flora and fauna and related traditional knowledge (known as Matauranga)
[117] . Called the Indigenous Flora and Fauna and Maori Intellectual and Cultural
Property Claim, it seeks to re-establish te tino rangatiratanga to the
knowledge of native plants and animals and cultural taonga. This knowledge,
claimants say, was traditionally owned by Maori. The claim is attempting to
highlight the issues and establish a structure - perhaps a Maori-run intellectual
property commission - to preside over applications.

We oppose biopiracy and the patenting
of our biological resources and knowledge because it goes against our human
and cultural rights and identity. We firmly believe that benefit sharing is
possible without patents.

We declare our opposition to the
patenting of life and to the patenting of crops and seed, because we are concerned
about the removal of control of food production from local communities and farmers
to multinational corporations.

We believe that community rights
over biodiversity and indigenous knowledge are collective in nature, and therefore
cannot be privatised or individualised. Intellectual property rights as applied
to biodiversity and traditional knowledge are private and monopolistic in nature
and therefore incompatible with community rights. IPRs cannot exist within a
traditional knowledge system and attempts to bring these two worlds together
are misguided and unacceptable.

From The Johannesburg Declaration
on Biopiracy, Biodiversity and Community Rights, South Africa, August 2002
[118]

Village fairs, community exchanges and biodiversity festivals
are some of the innovative ways used to keep alive and celebrate biodiversity
and its link with the local culture. In Nepal, it is at one such biodiversity
fair that the villagers realised that almost 100 traditional rice varieties
were still in use, though they had long disappeared from the market. In India
the Academy of Development Science periodically organises a Â‘Vedu SammelanÂ’
Â– gathering of traditional healers. Under IndiaÂ’s NBSAP process, biodiversity
festivals have been held in various parts of the country, and have become platforms
for seed and information exchange, celebration of cultural aspects of biodiversity,
and revival of traditional knowledge systems.

In the light of the erosion of some traditional practices
and of the very resources that they relied on, there are several examples of
people attempting to revive their former knowledge systems.

Recognising the importance of traditional knowledge, leaders
at Sahabat Alam Malaysia are helping the villages of Long Sayan and Uma Bawang
Keluan create botanical conservation sites. These sites will be a repository
for many different species of rattan, bamboo, fruit trees and medicinal plants.
With funding from The Borneo Project these pilot programs are helping villagers
manage, preserve and restore rare plants stocks for future generations.

In Jardhargaon, a typical Himalayan foothills village in Uttar
Pradesh, northern India, the villagers took charge of the heavily degraded slopes
above their village. They started the Beej Bachao
Andolan (Save the Seeds Movement), and through many journeys to the remoter
villages, they have been able to collect many varieties lost elsewhere in the
region (up to 250 of rice, 170 of common beans, and others). Several farmers
are now at various stages of switching over tobiologically diverse, sustainable
agricultural practices.
[119]

In Bangladesh, facilitated by UBINIG (the Bangla acronym for
Â“Policy Research for Development AlternativeÂ”) is the Nayakrishi Andolan
Â– the New Agricultural Movement, a peasant initiative for biodiversity-based
farming. It is new in its way to Â“incorporate traditional and indigenous
knowledge of farming based on the principles of preservation, conservation and
enhancement of biodiversity and genetic resourcesÂ”.
[122] The traditional uses of medicinal plants are kept alive through women
and village seed banks are seen throughout the region.

Where tradition itself cannot be resurrected there is clearly
a need for alternative ways to keep alive traditional knowledge.

In the quest for alternatives to the use of conventional intellectual
property rights in the protection of traditional knowledge, there are attempts
being made by NGOs, indigenous groups and local communities towards strengthening
community rights, campaigning for farmersÂ’ rights, restoring the Â“culture of
the commonsÂ”
[123] and demanding recognition and respect for customary and indigenous
law.Â

A core issue raised by indigenous peoples groups and local
communities alike, is that of rights over resources. The rights to land are
central to this struggle and often surface in the demand for land reforms. Linking
land rights and traditional knowledge is a strategic step. For instance in the
Philippines the issue of control over Â“ancestral domainÂ” [124] and plants are intrinsically linked.

In the interpretation on law, judges
can only go so far as to verify that a relation with a bio-resource is a normal
practice by the customary law and no further and that the elements of customary
law are present, they can not go beyond that in laying down what is and what
is not customary law.

Indigenous and tribal people from tropical forests around
the world have united to create a new alliance to confront the destruction and
desecration of their territories and forests. Representatives from forest- communities
in the Americas, Asia and Africa formed the "International Alliance of
the Indigenous-Tribal Peoples of the Tropical Forests" at a conference
in 1992 held in Penang, Malaysia. The conference adopted a "Charter of
the Indigenous-Tribal Peoples of the Tropical Forests". The Charter
demands the recognition of the ownership of traditional territories of all the
Alliance members. The people insist that only once they have secure ownership
and control of their territories they can be sure of a future and life in balance
with their environment. The development they seek would be based on their traditional
knowledge, which would first meet their basic needs to ensure self-reliance
and independence and thereafter would be oriented towards generating a surplus
for the market, using suitable technologies. [126]

Realising that the fight cannot be won alone, it is becoming
increasingly common for indigenous groups and local communities to form alliances
to articulate together their vision of the world. Examples of such regional
formations are those in Pacific, which got together to write in 1995 a Treaty
for a Lifeforms Patent-Free Pacific and its Protocol Concerning Biological
Prospecting in the Pacific. Likewise, the Bangkok-based Asia Indigenous
Peoples Pact Â– a forum for indigenous peoplesÂ’ movements in Asia collectively
lobbies for the rights of indigenous people in Asia. [127]

There are also groups and individuals that see an alternative
in totally ignoring or wilfully violating the patent system. Thus they do not
feel the need to engage in the IPR debate. As articulated by Krishna Ram Adhikari
of Nepal: we will go on with our everyday lives as always, whether there
are patents or no patents. [128]

It is clear that industry, with increased support from governments,
are quickly establishing control over plant genetic resources and associated
knowledge through the use of IPRs. Yet resistance to this incursion on community
rights has been disparate and experimental. Overall, communities are increasingly
losing control over their own plants and are being increasingly exploited for
their knowledge. As awareness amongst groups, communities and even governments
increases, and as those affected become more organised, the tide has begun to
turn. There is however a lot of strategic work to be done among NGOs and peopleÂ’s
movements in order to build a stronger social force against the growing influence
of trade and IPR over genetic resources and traditional knowledge.

This conclusion looks forward at how to stem the exploitation
of peopleÂ’s knowledge and their resources with little or no compensation. To
this end we have provided possible action points; points that would help protect
traditional knowledge in Asia-Pacific from privatisation:

NETWORKING: increased networking amongst NGOs and communities
to present a united body of opinion.

COMMUNITY RIGHTS: the development and establishment of strong
community rightsÂ’ systems that recognise the collective nature of local innovation,
promote its development and application, encourage individual innovation within
this community framework, and shield biodiversity and indigenous knowledge from
privatisation.

LEGAL: conferring clear and unambiguous legal rights to genetic resources,
which is closely linked with the recognition of the rights of indigenous peoples
and local communities to such resources. This means that basic issues of self-determination,
sovereignty and communitiesÂ’ own definitions of their rights need to be dealt
with and built into statutory law and policy at national level.Â

DOCUMENTATION: the recognition and protection, through legal
means, of the various initiatives at documenting traditional knowledge. The
uncertainty about whether and how to document the materials and knowledge, for
fear that the information is used against the peopleÂ’s interests, needs to be
resolved.

TRIPS: strengthening a unified demand to review and amend
the WTO TRIPs Agreement.

COMPANIES: checking the expansion of company control in the
region. This expansion comes at a time of general unawareness amongst farmers
and communities; as Muhd Yakub of the Takhleeq Foundation in Pakistan points
out: Â“the common farmer is not aware of the complexities of the patent systemÂ”.
There is, therefore, a need for raised awareness and empowerment within communities
through the effective dissemination of information on these issues.

[1] Indigenous knowledge is seen as the traditional
knowledge of indigenous peoples, or local knowledge particular to an area,
region or country, etc. Thus not all traditional knowledge-holders may be
indigenous, but all indigenous peoples are traditional knowledge holders.

[2] Formal sector Â– in this case this relates to
the conventional bodies who research and develop plant genetic resources including
both public and private bodies.

[3] Kate, K. and.Laird S A, 1999, The Commercial
Use of Biodiversity, Access to Genetic Resources and Benefit-Sharing, Earthscan,
London

[8] 35 US Code 102 (a) A person shall be entitled
to a patent unless the invention was known or used by others in this country,
or patented or described in a printed publication in this or a foreign country,
before the invention thereof by the applicant for patent

[9] WIPO/IPTK/RT/99/6A dated October 27, 1999 We
would add that it is not just rainforests, but the destruction of various
kinds of ecosystems on which indigenous peoples depend on that threatens their
knowledge.

[11] 27.3 Members may also exclude from patentability
(b) plants and animals other than micro-organisms, and essentially biological
processes for the production of plants or animals other than non-biological
and microbiological processes. However, Members shall provide for the protection
of plant varieties either by patents or by an effective sui generis system
or by any combination thereof. The provisions of this subparagraph shall be
reviewed four years after the date of entry into force of the WTO Agreement.

[13] The largest Third World grouping of countries
in the United Nations system, now comprising 133 members. The name G77 was
the original membership when the group commenced in 1964. www.g77.org/main/main.htm

[19] The World Intellectual Property Organization
(WIPO) organised, in cooperation with the Japanese Patent Office, the WIPO
Asian Regional Forum on Intellectual Property Policy Development in Tokyo, October 7, 1998

[20] Article 8(j) Each Contracting Party shall,
as far as possible and as appropriate, subject to its national legislation,
respect, preserve and maintain knowledge, innovations and practices of indigenous
and local communities embodying traditional lifestyles relevant for the conservation
and sustainable use of biological diversity and promote their wider application
with the approval and involvement of the holders of such knowledge, innovations
and practices and encourage the equitable sharing of the benefits arising
from the utilization of such knowledge, innovations and practices.

[21] Report on the Workshop on Traditional Knowledge
and Biodiversity, Madrid, 24-28 November 1997, UNEP/CBD/TKBD/1/3 dated 15
December 1997

[22] The Ad Hoc Open-ended Inter-sessional Working
Group on Article 8(j) has so far held two meetings: 27-31 March, 2000 in Seville,
Spain (See Report UNEP/CBD/COP/5/5) and 4-8 February 2002 in Montreal, Canada
(See Report UNEP/CBD/COP/6/7)

[23] Recognizing the close and traditional dependence
of many indigenous and local communities embodying traditional lifestyles
on

biological resources, and the desirability of
sharing equitably benefits arising from the use of traditional knowledge,
innovations and

practices relevant to the conservation of biological
diversity and the sustainable use of its components

[46] Apart from Yves Saint Laurent products, one
can also find ilang ilang in many of the floral fragrances that are on the
market including Â“PoisonÂ” by Christian Dior, Â“Champs-ElyséesÂ” by Guerlain
and Â“Acqua di GioÂ” by Giorgio Armani.

[86] In the keynote speech by Dr.Surendar Shrestha,
Secretary, Ministry of Agriculture and Co-operatives, Royal Government of
Nepal at the Consultative Meeting on IPRs and FarmersÂ’ Rights, 7-8 May 2002,
Nepal

253. By Governments,
at all levels, including municipal authorities, as appropriate:

(c) Encourage,
subject to national legislation and consistent with the Convention on Biological
Diversity, the effective protection and use of the knowledge, innovations
and practices of women of indigenous and local communities, including practices
relating to tradition medicines, biodiversity and indigenous technologies,
and endeavour to ensure that these are respected, maintained, promoted and
preserved in an ecologically sustainable manner and promote their wider application
with the approval and involvement of the holders of such knowledge. In addition,
safeguard the existing intellectual property rights of these women as protected
under national and international law. Work actively, where necessary, to find
additional ways and means for the effective protection and use of such knowledge,
innovations and practices, subject to national legislation and consistent
with the Convention on Biological Diversity and relevant international law,
encourage fair and equitable sharing of benefits arising from the utilization
of such knowledge, innovation and practices;

[103] At the sixth meeting of the Forum Economic Ministers
in Port Vila, Vanuatu, 3-4 July 2002, Â“Ministers recognised the importance
of protecting intellectual property rights, particularly traditional ecological
knowledge, innovations and practices, and traditional knowledge and expressions
of culture, as key resources for the region and noted:

(a) limited progress in the finalisation
of the draft regional framework, in particular the draft model law for the
protection of traditional ecological knowledge, innovations and practice relating
to biological resources, but to further note that this initiative has been
promoted globally through the WIPO IGC process; (b) progress made in incorporating
international developments in the draft regional framework (regional guidelines
and model law) for the protection of traditional knowledge and expressions
of culture; and (c) the progress in the implementation of three elements of
the Regionally Focused Action Plan for improving IPR systems in the Forum
island countriesÂ”.

[123] Where resources are shared in use and publicly
owned by the common people

[124] PhilippinesÂ’ Indigenous PeoplesÂ’ Rights Act,
popularly called Â“IPRAÂ”, is also referred to as the Ancestral Domain Law,
since it seeks to recognise and protect the rights of the indigenous peoples
in the Philippines. In its Section 3 it defines Â“ancestral domainÂ” as Â“all
areas generally belonging to Indigenous Cultural Communities/Indigenous Peoples
(ICCs/IPs) comprising lands, inland waters, coastal areas, and natural resources
therein, held under a claim of ownership, occupied or possessed by ICCs/IPs,
by themselves or through their ancestors, communally or individually since
time immemorial, continuously to the present except when interrupted by war,
force majeure or displacement by force, deceit, stealth or as a consequence
of government projects or any other voluntary dealings entered into by government
and private individuals/corporations, and which are necessary to ensure their
economic, social and cultural welfare. It shall include ancestral lands, forests,
pasture, residential, agricultural, and other lands individually owned whether
alienable and disposable or otherwise, hunting grounds, burial grounds, worship
areas, bodies of water, mineral and other natural resources, and lands which
may no longer be exclusively occupied by ICCs/IPs but from which they traditionally
had access to for their subsistence and traditional activities, particularly
the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivatorsÂ”.